News & Analysis

Daniel Engelstein Takes on Mandatory Arbitration

On June 2, 2016, NYU held its 69th Annual Conference on Labor, which brought together top government officials and leading attorneys in the fields of labor and employment law. LR’s Daniel Engelstein presented his Reflections on the Mandatory Arbitration of Statutory Employment Claims, which analyzes the difference between the use of arbitration as part of a collective bargaining relationship and its use in statutory employment claims. Danny discusses the ways that implicit biases and cognitive habits impact the decision making process of arbitrators and how they negatively affect employees who are seeking justice through mandatory arbitration. While the idiosyncratic structure of collective bargaining minimizes the impact of these factors, the structure in place for mandatory arbitration fails to mitigate their negative impact. To effectively diminish those deficiencies, Danny proposes three solutions that will make mandatory arbitration a more neutral forum:

Compensating for the loss of jury trials by minimizing, through the training and certification of arbitrators, the individual biases and cognitive habits which tend to distort outcomes.

Eliminating the disparity in the arbitrator selection process, and the resulting influence such disparity has on arbitration outcomes, by having a designation process from panels of trained arbitrators.

Avoiding error and inconsistency in the enforcement of the public statutory mandates by establishing uniform legal standards, leaving to the arbitrator the role of fact finder.